FEDERAL COURT OF AUSTRALIA Wang v Minister For Immigration & Multicultural Affairs [2000] FCA 511 IMMIGRATION - Refugee - protection visa - application for review of decision of Refugee Review Tribunal - persecution on grounds of religion - applicant a member of "underground" Protestant Christian church in China - Chinese legal requirement that churches be registered - applicant alleges persecution on grounds of religion for worshipping at unregistered church - whether Tribunal erred in law by asking itself wrong question - distinction between "religion" and church organisation and governance Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50, referred to JI DONG WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1481 OF 1999 LINDGREN J 26 APRIL 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1481 OF 1999 BETWEEN: JI DONG WANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 26 APRIL 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1481 OF 1999 BETWEEN: JI DONG WANG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 26 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The applicant ("Mr Wang") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 10 December 1999 affirming a decision of a delegate ("the Delegate") of the respondent ("the Minister") not to grant him a protection visa. 2 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act. It is not in dispute that he made the necessary delegation to the Delegate. 3 One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of the Refugees done at Geneva on 28 July 1951 as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 4 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application include that specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), Mr Wang was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has jurisdiction with respect to it (s 486). 7 Mr Wang's case is that he is outside the country of his nationality, The People's Republic of China, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion. Procedural background 8 Mr Wang arrived in Australia on 7 May 1997. On 30 June 1997, he applied, through solicitors and migration agents, Coroneos & Company, for a protection visa (visa sub-class 866). The Delegate refused the application on 20 April 1998. On 4 May 1998, Mr Wang applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 14 April 1999. As noted above, on 10 December 1999, the RRT affirmed the Delegate's decision. Mr Wang commenced the present proceeding on 22 December 1999 and filed an amended application on 17 March 2000. The reasons for decision of the RRT 9 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider Mr Wang's claims and evidence. It observed that these were to be found in written submissions to the Department of Immigration and Multicultural Affairs ("the Department"), written submissions to the RRT and oral testimony before the RRT at the hearing on 14 April 1999. The following is a summary of Mr Wang's claims and evidence. 10 Mr Wang claimed that he was born on 8 April 1964 and that he is married with one child and that his wife and child remain in China. He claimed that in 1970 his father was arrested and imprisoned for four years during the Cultural Revolution as a result of being caught speaking to a group of people about Christianity. He claimed that he, his father and his mother were all religious and that in 1988 or 1989 he and they commenced to attend a church in Jiangsu that was not registered with the Government. His wife prayed at home, being afraid to accompany Mr Wang to Church on Sundays. Mr Wang would attend Church once a week and would join in prayer with fellow members and would sometimes read the Bible to them. As well, he would attend meetings of a religious association once a month in Jiangsu. 11 In December 1995, Mr Wang and his mother opened an electrical shop. It was registered in his mother's name. The Sunday before Christmas 1995, Mr Wang was detained by the Public Security Bureau ("PSB") when he was attending a religious meeting. He was held in a cell for four days. He was "constantly questioned and … was beaten". At the end of the four days, he was released. 12 His shop was broken into and various items were broken. He reported the incident to the Police but was not assisted by them. Over the next six months, there were more break-ins with the same result: Mr Wang reported the incidents to the Police but they did not assist him. In fact they told him that he was "under investigation" and that they did not want to assist him in connection with the break-ins. 13 On 20 October 1996, after attending a religious meeting at a fellow member's home, Mr Wang was arrested, taken to the Chang Zhou Gong An Bureau and interrogated. Two officers there attacked him and as a result he woke up in the No 2 People's Hospital of Changzhou City. Three fellow members were imprisoned and are still in gaol. 14 Between December 1995 and October 1996, Mr Wang was twice detained by the PSB, for several days each time, and questioned about his religious beliefs (prior to this period, the PSB had spoken to him some five times). In November 1996, the PSB closed the church he attended (it was later re-opened as a registered Church). 15 In spite of warnings that if he persisted in his religious practices he would be detained again, Mr Wang met secretly with fellow members for prayer. In early 1996, his family told him that the Religious Affairs Bureau ("RAB") came to his shop while he was at work and scared customers off so that his business would suffer. Officers of the RAB attended at his shop and told him that his church was not an approved one and that if he continued to attend it he would be imprisoned. The first break-in at his shop had occurred the day after he was given such a warning by the RAB. 16 In May 1997, Mr Wang decided to leave China because the PSB threatened to arrest him if he continued to print and distribute Bibles. He had been distributing them from his shop. His stock of Bibles was confiscated. 17 The RRT found that Mr Wang was not able to describe important Christian doctrines but he explained this shortcoming by stating that he was not a leader or teacher. He also explained that the Chinese Government controlled religious materials. He claimed that he could not worship faithfully in a registered church which served the purposes of the Communist Party. 18 Mr Wang's father had a friend who worked in the Ministry of Foreign Affairs who was also a Christian. He arranged for the issue of passport to Mr Wang for which "a large fee" was paid, and for an application to be made on behalf of Mr Wang for an Australian visa. A Chinese passport was issued on 25 February 1997 and a temporary business visa was issued on 23 April 1997 for a three month stay in Australia. 19 On 5 May 1997 Mr Wang's family drove him to Shanghai Airport and the next day, 6 May, he flew to Australia. Since arriving here he has been regularly attending the Chinese Presbyterian Church every Sunday and he was baptised on 22 February 1998. 20 In a post-hearing submission dated 11 May 1999, Mr Wang's advisers submitted that Mr Wang might not, in his testimony, have demonstrated a detailed understanding or knowledge of both Testaments of the Bible, but submitted that he had demonstrated that he was nonetheless a believer of Christianity and "had very set views about not attending or being able to carry on his religious practices at a registered Church in China". 21 The RRT accepted that Mr Wang's father may have been a victim of the Cultural Revolution and that the family may have suffered as a result. It considered, however, that the repudiation of the Cultural Revolution at the end of 1978 and the subsequent changes in China meant that it could no longer be said on account of events so long ago, that Mr Wang faced persecution in China today. 22 The RRT found that Mr Wang had provided sufficient information about his beliefs and activities for it to be "feasible" that he had a rudimentary knowledge of the Christian religion. It also found that he had spent some time as a member of an unregistered congregation which was part of the Protestant Church. The RRT also accepted that in Australia Mr Wang has continued to practise his faith as a member of the Chinese Presbyterian Church. 23 The RRT considered Mr Wang's claim that he had been "detained five times during December 1995 and October 1996". It accepted that this was a "stiff penalty" but noted that he had been released each time without being prosecuted. (In fact the RRT had understood Mr Wang's claim to be that he had been detained five times during the period mentioned, overlooking a correction that he had made to the effect that it was twice during that period.) 24 The RRT observed that "[i]n some local areas, the government has enacted its control as old-style repression and prohibition" but that this is not government policy, which is that religions and religious groups are to be tolerated "if they acknowledge government regulations". The RRT stated, quoting from the Human Rights Watch/Asia October 1997 Report on the State Control of Religion in China: "When reports of these harsher measures do surface, they are increasingly denounced by the central government officials as examples of the excesses of local officials and their failure to implement policy directives correctly." 25 The RRT did not consider that the requirement of registration or the control of printing and distribution of religious material was persecutory of people of religious persuasion. 26 The RRT posed for itself the question whether Mr Wang had been or would be deprived of his right to worship by acceding to the government regulations. As noted below, on the present application Mr Wang submits that this was the wrong question to ask. The RRT found that he had not been, and would not be, deprived of his right to worship by complying with the regulations. It was satisfied that he could practise as a Protestant Christian in China, noting a growth in registered Protestants, an increase in the number of Bibles printed (with Government approval) in the country, and the fact that many Protestants move between official and unofficial churches. 27 Finally, the RRT placed no weight on Mr Wang's testimony that he had had to pay a bribe to obtain a passport and a visa to leave China, as it found bribery to be common in China. It considered that if Mr Wang had been of interest to the authorities because of his religion, he would not have been able to bribe his way out of the country. The RRT was not persuaded that Mr Wang was wanted by the authorities or that he faced persecution by them. Grounds of the present application for an order of review 28 Mr Wang's amended application sets out the grounds on which he relies as follows: "1. The Tribunal erred in failing to apply the relative [sic - relevant] principles of law in order to determine whether or not the Applicant was a refugee. 2. The Tribunal erred in failing to apply the 'real chance' test. 3. The facts as found by the Tribunal nor the evidence did not support the conclusion reached. 4. The Tribunal failed to determine whether the Applicant had a well founded fear of persecution should he return to the Peoples Republic of China. 5. The Applicant relies on Section 476 (1) (c) and (e) of the Migration Act." The ground referred to in para (c) of subs 476(1) is "that the decision was not authorised by [the] Act or the regulations". Paragraph (e) of subs 476(1) reads as follows: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision" Submissions on the present application for an order of review 29 Counsel for Mr Wang submits that the RRT's approach is fundamentally flawed. According to his submission, the RRT's conclusion requires him, in order to avoid persecution, to practise his faith in the official church. He submits that this conclusion implies acceptance of the fact that he would be persecuted if he resumed worship at an unofficial church. He submits that the RRT asked the wrong question, what would happen if he were to return to China and worship in a registered church, rather than the right question, what would happen if he were to return and worship in an unregistered church. 30 The Minister submits that the RRT found that the restrictions on Mr Wang's ability to practise his religion did not amount to 'persecution'. The Minister contends that Mr Wang's submissions point only to putative errors of fact and that these can amount to error of law only if the factual findings made were not reasonably open: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543. Reasoning on the present application for an order of review 31 While the RRT accepted that Mr Wang may have been detained as many as five times between December 1995 and October 1996, it did not expressly answer the question it posed for itself, namely, whether that treatment was persecutory on grounds of religion. 32 The gravamen of the RRT's reasoning is found in the following two paragraphs: "The Tribunal is satisfied … that the applicant could practise as a Protestant Christian in China. It notes that many Protestants move between the official and unofficial churches. It also notes that there is a growth in registered Protestants and a corresponding growth in the demand for Bibles. Moreover it also notes that the government continues to approve the printing of Bibles. The Tribunal did not find that the applicant held any significant belief which would prevent him from participating in worship services where these 'flexible' arrangements were in place." "The Tribunal is satisfied that, given the applicant's level of understanding of his Protestant faith and the growth of links between the official and the unofficial Protestant Churches in China, he would be able to resume his religious practices and beliefs, subject to some state controls but insufficient to deprive him of his right to religious freedom. The Tribunal is not persuaded that he is a person wanted by the authorities and that he faces persecution from them. He was given permission to leave China well after his religious activities became known. The Tribunal is satisfied that the applicant would not face persecution in the future on account of his religion." 33 Giving the RRT's Reasons for Decision, and these passages in particular, the beneficial construction that I must accord them (cf Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272), I think it reasonably clear that the RRT's reasoning was that even assuming in Mr Wang's favour that he was detained as mentioned and that there was a real chance that if he were to return to China his experience would be repeated, this would not constitute persecution "for reasons of … religion". Rather, it would constitute the enforcement of a system of regulation of church governance that was not persecutory of religion. Mr Wang's amended application for an order of review and the submissions made on his behalf are consistent with this understanding of the RRT's reasoning. 34 In the two passages set out above, the RRT made these findings: · Mr Wang can practise as a Protestant Christian in both official and unofficial churches; · Mr Wang does not hold any significant religious belief that would prevent him from doing so; · Mr Wang's level of understanding of his Protestant faith is not such that he would encounter religious difficulty in worshipping in an official church; · If Mr Wang were to resume worshipping in an unregistered church, difficulties that he might again encounter with the authorities would be due to the enforcement of the régime of governmental control over the organisation of religious institutions, not the inhibition of his religious beliefs and practices. 35 Since the RRT's decision in the present case, a Full Court of this Court has considered the question whether the requirement that churches in China be registered constitutes persecution. The case is Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50, decided on 10 February 2000. Hill J delivered the leading judgment in which his Honour stated (at [41]-[43]): "For my part I am prepared to accept that the prohibition legally to practise one's religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention. But did the Tribunal find that Mr Zheng was prohibited from practising his religion? There was evidence before the Tribunal which was accepted by it that, while problems were encountered by members of the underground Catholic church, there was not prohibition upon Catholics practising their religion. The fact that religious congregations were required to register was not itself persecution as the Tribunal held. The Tribunal was of the view that there was no doctrinal difference in religious practice between the underground church on the one hand and the open registered Catholic church on the other. The difference between them lay only in the need for registration, what the Tribunal referred to as "the governance of the church". Put another way, the country information showed that the recognised or patriotic Catholic church was required to be self-supporting and self-propagating with choice of bishops being left to Chinese authorities rather than the Vatican but the underlying religious faith was the same. In my view it was open to the Tribunal to reach the conclusion it did on the evidence before it and it follows that the decision of the Tribunal discloses no reviewable error." Whitlam and Carr JJ agreed. 36 I can see no reason for distinguishing this case from Zheng in the relevant respect. In both cases the RRT distinguished between the Christian religion (in Zheng Roman Catholic and in the present case Protestant) and church organisation and administration. According to the distinction, it is not persecution on grounds of religion to make and enforce laws prohibiting congregational worship elsewhere than at "registered" or "official" or "patriotic" churches, the clergy of which have been appointed by the Chinese Government. 37 The Full Court in Zheng held that the RRT had been entitled to rely on that distinction on the evidence before it. I am bound to follow Zheng for what the Full Court decided. Although its decision was founded on the evidence that was before the RRT in that case and therefore does not require a particular result in this case, it is important that the Full Court implicitly accepted the validity for the purpose of the Convention definition of the general distinction just mentioned. I should follow the Full Court in this respect. There was evidence before the RRT in the present case on which it was entitled to make the same distinction. 38 Contrary to Mr Wang's submission, the RRT did address the question, albeit only implicitly, what would happen to him if he were to resume worship in the underground church. It accepted that he may well be again detained, reprimanded and released, but thought that this would not be persecution on grounds of religion, but would be the legitimate enforcement of a system of regulation of public religious assembly that is consistent with the Convention. In my respectful opinion, the RRT's approach in the present case is consistent with that taken by the RRT, and found acceptable by the Full Court, in Zheng. 39 Notwithstanding this result, I question the general distinction between "religion" and the governance of religious institutions. The distinction seems to treat "religion" in the Convention sense as necessarily and in all cases limited to matters of personal faith and of doctrine and as not having a congregational, community or corporate aspect. I doubt the correctness of this view. My concern is reflected in the following passage from the Human Rights Watch/Asia October 1997 Report on the State Control of Religion in China, which was before the RRT in the present case: "for Chinese officials, religious belief is a personal, individual act, and they distinguish between personal worship and participation in organized religious activities. It is the latter that they go to great lengths to control, not the former. The whole concept of religious freedom, however, involves not only freedom of the individual to believe but to manifest that belief in community with others." 40 The kind of difficulty to which I refer is indicated by the following passage from a statutory declaration by Mr Wang's wife that was before the RRT: "I have attended a registered church as well as an unregistered church. I noticed that the differences between the two churches were as follows: 1) In the registered church the minister after reading a bible spoke about communism and how we must not allow our religious beliefs to override communist ideologies. 2) At the registered church officers of the PSB were present." 41 Finally, the difficulty referred to is inherent in Mr Wang's claim, as described by the RRT, that he "could not worship faithfully in a registered church which was there to serve the purposes of the Communist party", a claim that the RRT must be taken to have rejected. 42 If I were to give effect to my concerns, however, I would intrude upon a consideration of the merits of Mr Wang's application for a protection visa. Having regard to the RRT's findings of fact and the Full Court decision in Zheng, I think Mr Wang has not established either of the grounds of review on which he relies. Conclusion 43 For the above reasons, the application will be dismissed with costs. I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 26 April 2000 Counsel for the Applicant: Mr J M Atkin Solicitors for the Applicant: Coroneos & Company Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 21 March 2000 Date of Judgment: 26 April 2000